Judge in Loughner case to mull release of records

By JULIE WATSON, Associated Press
| 1:06 a.m.Feb. 18, 2011

FILE - This March, 2010 file photo provided by her office shows Rep. Gabrielle Giffords, D-Ariz. A judge overseeing the criminal case against the suspect in the shooting of Giffords and 18 others will hear arguments Friday, Feb. 18, 2011, over whether to release a new mug shot of the suspect and unseal records of a police search of his house. (AP Photo/Office of Rep. Gabrielle Giffords, File)
— AP

FILE - This March, 2010 file photo provided by her office shows Rep. Gabrielle Giffords, D-Ariz. A judge overseeing the criminal case against the suspect in the shooting of Giffords and 18 others will hear arguments Friday, Feb. 18, 2011, over whether to release a new mug shot of the suspect and unseal records of a police search of his house. (AP Photo/Office of Rep. Gabrielle Giffords, File)
/ AP

San Diego 
A judge overseeing the criminal case against the suspect in the Tucscon, Ariz., shooting rampage will consider whether to release a new mug shot of the suspect and unseal records of a police search of his house.

Federal prosecutors and lawyers for 22-year-old Jared Lee Loughner oppose requests by news organizations to hand over the photo and make an immediate release of search warrant records. Loughner will not attend Friday's hearing.

The company that publishes The Arizona Republic and the Phoenix TV station KPNX are seeking records that show which items investigators took in a search of Loughner's house after the Jan. 8 shooting in Tucson.

The attack outside a grocery store killed six people, including a 9-year-old girl, and wounded Rep. Gabrielle Giffords and 12 others. Loughner pleaded not guilty to federal charges of trying to assassinate Giffords and kill two of her aides.

The indictment specifying those charges superseded an earlier federal complaint that also charged him with murder for the killings of U.S. District Judge John Roll and Giffords aide Gabe Zimmerman.

Another indictment is expected to restore those murder charges. Loughner also will likely face state charges in the attack.

U.S. District Judge Larry A. Burns of San Diego was appointed to hear the case after all the federal judges in Arizona recused themselves because of their connection to Roll, who was the chief federal judge in Arizona.

David Bodney, an attorney representing The Arizona Republic and KPNX-TV, argued in court papers that there's no basis for the records to continue to be sealed, that the public has a right to the records that have been under seal since Jan. 11, and that prosecutors haven't shown how making the document public would harm their case.

Judy Clarke, one of Loughner's attorneys, said in court records that her client's right to a fair trial might be harmed by the release of search warrant records.

She also said the documents contain potentially inflammatory statements by a law enforcement officer and that releasing the information could have a prejudicial effect on the prospective jury pool.

Prosecutor Beverly K. Anderson said in court papers that the federal government agreed with Loughner's attorneys who maintain the records shouldn't be released until lawyers litigate issues based on the items seized from the suspect's house. But Anderson said if the judge decides to unseal the records, prosecutors want parts of the records to still be kept private.

Loughner's attorneys also asked the court to bar the release of a mug shot taken in Phoenix of Loughner while in the custody of the U.S. Marshals Service. The unreleased photo is a different image from a mug shot that was released by the Pima County Sheriff's Office two days after his arrest.

Prosecutors described the new mug shot as showing Loughner with abrasions on his face and a cinderblock-wall background.

Clarke argued the new photo invades Loughner's privacy rights, doesn't serve any legitimate public interest and that mug shots reveal people at their most humiliating moments.

Prosecutors, who didn't oppose Loughner's mug shot request, said flawed case law binds the Marshals Service to release the photo, but noted that the judge could protect Loughner's fair trial rights from pretrial publicity.

The news organizations that initially requested the mug shot included the Arizona Daily Star in Tucson, KOLD-TV in Tucson and KPHO-TV KTVK-TV, both in Phoenix.